N9953

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 897 OF 2021

THE STATE

V

NICKOLAS TOTOKO

Kokopo: Suelip AJ
2021: 20th May & 27th July

CRIMINAL LAW – sentence – plea – sexual penetration of child under 12 years s.229A(1)(2) Criminal Code – aggravating factors outweigh mitigating factors – prisoner’s advanced age – other health conditions considered – sentence of 12 years less pre-sentence term – 3 years suspended.

Cases Cited

Goli Golu v State [1979] PNGLR 653
Stanley Sabiu v. State (2007) SC866
State v Lesson David (25.7.06) CR. No. 561 of 2005
State v Paul Wakara (19 Sept. 2006) CR. No.914 of 2006
State v Paul Gule (2007) N5047
State v. Lemek Jubin CR No. 1142 of 2016

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

DECISION ON SENTENCE

27th July, 2021

1.	SUELIP AJ:	On 20 May 2021, the prisoner pleaded guilty to and was convicted on a charge of sexual penetration of a girl under 16 years old contrary to section 229A(1)(2) of the Criminal Code.

2.	This is my decision on sentence.

3.	These are the facts that led to his guilty plea and conviction. On 22 April 2017, he was at Ulaulatava village, Kokopo, East New Britain Province. The complainant, Francisca Hosea was five (5) years old at the time. The complainant went down to the creek to bath when she met him. He then dragged her into the bushes near the creek where he fiddled around with her vagina. He then inserted his penis into her vagina and sexually penetrated her. He told her not to tell her aunty. The complainant continued bleeding from her private part. Her aunty questioned her, and she later revealed what he had done to her. The complainant was then taken to the hospital and a complaint was laid with the police which led to him being arrested and charged. His actions contravened section 229A(1)(2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 and he was charged with sexual penetration of a child under section 229A(1)(2) of the Criminal Code as amended. 
	
4.	Section 229A(1)(2) of the Criminal Code provides as follows:-
	
(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2)	If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life. 

5.	Since the victim is a 5-year-old child, the maximum penalty the prisoner may face is imprisonment for life.

6.	For purposes of sentencing, the prisoner’s personal particulars are these. He is 66 years old and comes from Rapikus Section, Ulaulatava Village, Kokopo, East New Britain Province. He was married since the mid-1970s. He has no biological children, but he adopted five (5) children who are all grown up and married. He was previously employed with various companies including logging companies. He now relies on garden produce and the occasional sale of copra to sustain his family. He has no prior conviction.

7.	During allocutus, he expressed remorse and said he is sorry for the wrong he committed and asked the Court for leniency and mercy. He said he has lost sight of his right eye. He also said he has lost hearing of his left ear. He said he does not have any teeth remaining and he is an asthmatic patient. He asked to be placed on good behaviour bond. 

8. 	In his favour, the mitigating factors are these. This is a one-off incident and he co-operated with the police. He also pleaded guilty to the offence and there is no special relationship between him and the victim. Further, he is a first-time offender, and his family members are willing to pay compensation. 

9.	Against him are these aggravating factors. His victim is a child under 12 years of age and there is a great age disparity of 61 years between him and the victim. Further, he used force and caused the victim to bleed from her vagina. As a result of his action, the child lost her virginity at a very young age. The victim also experienced physical and psychological pain, and she is traumatised. Finally, the offence he committed is prevalent, especially in this society.

10.	The pre-sentence report only engaged the views of the prisoner’s wife and son, and of the victim. His wife and son speak highly of him. They say he is a good husband and father. They say they were shocked to learn of the offence he is charged with, but they are willing to pay K500 cash as compensation. In the means assessment report, the prisoner says the victim’s family are demanding K2,000 cash which he does not have but he does have two wheels of shell money or ‘tabu’ that are valued at K2,250.00 in total.

11.	In the same report, the victim’s family are in fact demanding a total of K1000 in cash or K500 cash and 100 fathoms of shell money to be paid in three (3) stages. The first K500 cash has been paid. However, the victim herself did not mention anything on compensation but she wants the prisoner to be send away to prison. 

12.	It is trite law that the maximum penalty is reserved for the worse type case as seen in the homicide case of Goli Golu v State [1979] PNGLR 653.

13.	When deciding sentence, I consider the following useful guidelines in child sexual penetration cases outlined in the Supreme Court case of Stanley Sabiu v. State (2007) SC866: - 

(a)	Is there only a small age difference between the offender and the victim?
(b)	Is the victim not far under the age of 16 years?
(c)	Was there consent?
(d)	Was there only one offender?
(e)	Did the offender use a threatening weapon and not use aggravated physical violence?
(f)	Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?
(g)	Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?
(h)	Was it an isolated incident?
(i)	Did the offender give himself up after the incident?
(j)	Did the offender cooperate with the police with their investigations?
(k)	Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?
(l)	Has the offender caused further trouble to the victim or the victim’s family since the incident?
(m)	Has the offender pleaded guilty?
(n)	Has the offender genuinely expressed remorse?
(o)	Is this his first offence?
(p)	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
(q)	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

14.	Briefly, some of the comparable cases with facts similar to this case are: - 

(a)	In State v Lesson David (25.7.06) CR. No. 561 of 2005, the prisoner pleaded guilty to sexually penetrating a 10-year victim at a creek and was sentenced to 9 years imprisonment. 

(b)	In State v Paul Wakara (19 Sept. 2006) CR. No.914 of 2006, the prisoner pleaded guilty to sexually penetrating a 10-year-old girl and was sentenced to 10 years. 

(c)	In State v Paul Gule (2007) N5047, the prisoner pleaded guilty to sexual penetration of a 11-year-old girl and was sentenced to 8 years less pre-sentence custody time with 2 years suspension. 

(d)	In the Kokopo case of State v. Lemek Jubin CR No. 1142 of 2016, the prisoner sexually penetrated an 8-year-old girl and was sentenced to 17 years less time spent in custody. The Court held that the aggravating factors outweigh the mitigating factors and apart from the huge age gap, the victim suffered a torn hymen with vaginal infection. 

15.	Counsel for the prisoner argued that his starting point should be 12 years and his head sentence should stand at 10 years while the State submits that the starting point for his sentence should be 15 years as the offence on a minor is already serious in nature and the law must protect the vulnerable in society from predators. 

16.	The Court may also consider ordering compensation under section 2 of the Criminal Compensation Act 1991 and the maximum compensation amount must not be more than K5,000.00. (see S.5(3)). This is discretionary on the Court to consider whether an order for compensation is to be made depending on the circumstances of the case. However, compensation must be ordered only if the victim is willing to accept it and if the case warrants it as to restore peace and harmony in the community. 

Sentence

17.	This is not a worse type case and so it does not warrant the maximum penalty of life imprisonment. 

18.	The victim was only 5 years old when the prisoner committed this offence on her. She was very young then and so the physical and phycological effect on her is greater. She still recalls the incident and wants him to be in prison. She did not ask for compensation when she was interviewed for the pre-sentence report. Only her grandmother is making the demand for compensation. 

19.	I have also considered the prisoner’s advanced age and all the health issues he complained of. However, there are no medical reports to confirm the ailments he has. I can only see from his physical appearance that he does not have any teeth remaining. 

20.	Having heard the submissions from counsels and noting the particulars peculiar to his case, I consider a sentence of 12 years to be warranted. He has been in custody for 10 months. This period will be deducted from his head sentence. 

21.	I also consider that he is eligible to some suspended sentence as he has asked for the Court’s mercy and have paid K500 cash as compensation. He also intends to pay more compensation. Furthermore, he is advanced in his age, and he may not live much longer because of his ailments. The pre-sentence report is also favourable to him. 

22.	However, I am not prepared to suspend all his sentence as I am of the view that a greater part of his sentence should be served in remand to deter him and other wannabe underaged sexual penetrators from committing this and other similar offences in the future. I suspend 3 years of his sentence. 

23.	The Orders of the Court are: - 

(i)	He is sentenced to 12 years imprisonment. 

(ii)	His pre-sentence term of 10 months is deducted.

(iii)	3 years is suspended.

(iv)	He will spend 8 years and 2 months in prison at Kerevat before his release.

_______________________________________________________________
Public Prosecutor:		Lawyers for the State
Public Solicitor: 		Lawyers for the Prisoner